http://weedpress.wordpress.com/2011/09/ ... miss-case/
Last Friday, a hearing on the State of Iowa’s motion to dismiss the lawsuit challenging the constitutionality of Iowa’s controlled substances act was held.
owa Assistant Attorney General Scott Galenbeck, who represented the Iowa Board of Pharmacy during the 2009 medical marijuana hearings, litigated the case for the State of Iowa. Judge McCall oversaw the hearing, and Carl Olsen, the Plaintiff in the case against the State, represented himself.
Mr. Galenbeck, in his attempt to dismiss the merits of the lawsuit, tried to argue “res judicata,” a Latin term used in law that means “a matter already judged.” I doubt this argument will hold any water with Judge McCall:
And just yesterday, and I apologize for not getting this into my original motion, but just yesterday when I decided I needed a refresher course on this case that’s been going on since 2008, I looked at a ruling by a Judge Novak, in response to that motion to expand ruling. And Judge Novak wrote, as to paragraph C… “This court rules,” excuse me…
“That it does not believe that it can determine as a matter of law that
marijuana does have accepted medical use in treatment in the United States,
based upon the medical use of marijuana in 13 states, and therefore fails to
satisfy the criteria for listing in Schedule I of Iowa’s Controlled SubstancesAct.”
“So, my notion is, as I said, I just realized this yesterday, that we have, that Judge Novak may have already ruled on, precisely the issue that is presented.” –Iowa Assistant Attorney General Scott Galenbeck
Carl Olsen responded to the State’s last-minute argument:
“The ruling from Judge Novak that Scott referred to, was a ruling in a petition for judicial review of an agency ruling. And the judge made that ruling in the context of a petition for judicial review.
When they dismissed the case, they never ruled on the merits of that issue, they just said the case was moot. And so I’ve never gotten an opportunity to even file an appeal on that issue, and so, if the court, if you find that this is res judicata, then at least I could appeal.”
After Olsen responded to the State’s recently discovered res judicata argument, Judge McCall had a question for Mr. Olsen. Judge McCall asked:
“Hasn’t the Pharmacy Board already made the determination you’re asking the court to make?” –Judge Brad McCall
“[T]he question is not whether the Iowa Board of Pharmacy thinks it has medical use, the question is whether 16 states, “in the United States,” have enacted laws defining it as medicine? And that’s something the court can take judicial notice of, and that’s something that the Full Faith and Credit Clause of the US Constitution requires for us to recognize: that the law in another state says what it says and means what it says.
The Legislature wrote this law, (see: Iowa Code Chapter 124) they picked the language, they said there was a condition on Schedule I, they said anything in that Schedule, must have “no accepted medical use in treatment in the United States” or it doesn’t fit that classification. Well, that has happened. Over the last 16 years 16 states have done that. The Legislature wrote that in there as a condition.
So the fact that the Legislature has refused to act on the Pharmacy Board’s recommendation is not relevant to my argument at all. My argument is based on that statutory language. To me, that has meaning. If it says marijuana can’t be in Schedule I, if it has accepted medical use in the United States, then that’s what it means. And that’s my argument.” –Plaintiff Carl Olsen
Activist Bob Manke, who presented evidence at the Board of Pharmacy hearings and has multiple radio and TV appearances under his belt concerning this issue, gave testimony towards the end of the hearing:
“The state of Oregon gave to me a medical marijuana document. I don’t know how much more plain it could be, and that’s partly why I gave this thing, submitted it to the Board of Pharmacy.
Medical marijuana being legal in other states is a fact of law. Period. I don’t see how any digression can help anything reduce that to something insignificant. It is a fact. I was medically examined by a doctor, and I was passed through the process of state government, and issued a legal document that allows me to grow, possess, smoke, and eat marijuana.” –Bob Manke, Oregon Medical Marijuana Cardholder and Iowa Patient